May 28, 1997
Yes sir, I do. Well,
here we are. I apologize for your loss and your pain, but I
didn’t kill those people.
Hopefully we will
all learn something about ourselves and about each other and
we will learn enough to stop the cycle of hate and vengeance
and come to value what is really going on in this world.
We can’t look back.
I forgive everyone
for this process, which seems to be wrong. We all end up
doing experiences which we create.
That is all I have
to say about that.
(There were some
Robert Anthony Madden
Founder of a drug rehabilitation
center, Bob Bearden thought one of his most loyal patients was
fully recovered until that same patient went back to his old ways
only months after the completing his program.
Robert Madden, born Sept. 9, 1963,
spent years in and out of the trouble with the law. Beginning at
the age of 15, Madden attended two different drug treatment centers,
spent years in prison and time on parole.
Sent by the state, Madden, 22, was
now at the third treatment center. Bearden became Madden’s counselor.
“He was kind of like a scared animal,” Bearden said. “He was a
No weapons were allowed at the
center; however, Madden carried a hunting knife. “He always had a
knife,” Bearden said. “Just like Davy Crocket.” Madden used the
knife to skin animals he caught. “He was quite a loner; however,
Madden never committed any crimes at Christian Farms,” Bearden said.
Completely trusting what he
thought to be Madden’s full recovery, Bearden hired him at his
printing company in Killeen, Texas in August of 1985.
On Sept. 12 of that year, Madden
stole the company car, drove to Marquez, Texas and left the vehicle
in a dry creek bed on the lease, due to a flat tire.
Around Sept. 15, Madden
encountered Herbert Elvin Megason, 56, and son Gary Lynn Megason,
21, at their weekend home. Prior to killing the Megasons, Madden
robbed a near-by home. The elder Megason suffered two gunshot-chest
wounds. The youngest Megason died from a cut to the throat and had
numerous gun and knife wounds. Both bodies were bound, put in a
creek, and covered with logs and brush.
Madden then took the elder
Megason’s pick-up truck, guns, and credit cards. Officer Gerry
Rosier, then deputy sheriff, said that during Madden’s retreat to
New Mexico, he used Megason’s Exxon and Texaco cards many times.
Madden signed his own name to the receipts and later told police he
did so because he did not want to be charged with forgery. “This
became the most substantial evidence to convict Madden,” David
Barron, assistant district attorney at the time, said. After
tracking the receipts, Madden was arrested in Angel Fire, New Mexico
on Oct. 7, 1985.
Madden showed police where and how
the incident occurred on Oct. 14, 1985. However, because the
confession was not written, nor recorded, the evidence would not be
permissible in court.
Madden was indicted on Oct. 18,
1985. Court-appointed defense attorney William F. Carter tried to
plea bargain. “Basically the grounds were because it would cost the
city, county, state, whatever, too much money,” said Pamela Megason-Calhoun,
daughter and sister of victims. “It’s a small town.”
Madden was convicted. “We felt
pretty confident the whole way. We were more concerned whether or
not Madden would be sentenced to death because there had not been a
capital murder case since the ‘30s in Leon County,” Megason-Calhoun
During the trial, Madden was very
passive. “He was attentive. He smiled a lot, which seemed to be
inappropriate,” district attorney Latham Boone said. Incidentally,
Madden’s uncle preached a sermon on mercy at Boone’s church after
Madden was sentenced to death on
Feb. 26, 1986. After the trial, Madden spoke to Barron. “Madden
said, Thank you David and shook my hand,” Barron said. “Robert’s
mind was pretty messed up from a long history of drugs.” With only
one stay of execution, Madden went through seven years of appeals.
On May 28, 1997, thirty-three-year-old
Madden asked that his last meal be provided to a homeless person,
but was denied by state officials. “I apologize for your loss and
your pain, but I didn’t kill those people,” Madden said during his
Sixteen minutes after leaving the
holding cell, Madden was pronounced dead at 6:42 p.m. in Huntsville,
18 F.3d 304
Robert MADDEN, Petitioner-Appellant,
James A. COLLINS, Director, Texas Department of Criminal
Justice, Institutional Division, Respondent-Appellee.
United States Court of Appeals,
March 29, 1994.
Rehearing Denied April 28, 1994.
Appeal from the United States
District Court for the Western District of Texas.
Before JONES, DUHE, and
WIENER, Circuit Judges.
WIENER, Circuit Judge:
In this petition for writ of
habeas corpus, Petitioner-Appellant Robert Madden challenges the
constitutionality of the Texas special issues as applied to him,
as well as comments made by the state in closing arguments. We
conclude that Madden's evidence does not fall within the ambit
of Penry and thus he was not entitled to additional jury
instructions. Similarly, we find no merit in Madden's
contentions that various comments by the prosecutor deprived him
of a fair trial. Accordingly, we affirm the denial of his habeas
* FACTS AND
Madden was charged with the
capital murder of Herbert Megason, whose body, found some four
to five days after his death, was hidden in a creek on his
weekend place in the country. Megason had been shot with a .22
caliber pistol. Also found in the creek was the body of
Megason's son, Gary, who apparently had been shot in the back
with a shotgun and whose throat had been slashed. Gary also had
defense wounds from a knife on his hands and forearm. Each man's
feet were bound, as were Gary's hands.
Madden was apprehended when he
signed his own name to Megason's Texaco credit card. In addition,
he admitted to Donald Jeffries, a new acquaintance, that he had
stolen the Megasons' truck. He also had in his possession
various items belonging to Megason. Most damaging, however, was
his possession of the murder weapons--the .22 pistol, the .22
Winchester rifle, and a bloodstained knife--which he attempted
to sell to Jeffries.
Based on this
evidence, Madden was convicted of the murder of Herbert Megason.
The judge then submitted to the jury the first two special
(1) was the conduct of the
defendant that caused the death of the deceased committed
deliberately and with the reasonable expectation that the death
of the deceased would result? and
(2) is there a probability that the defendant
would commit criminal acts of violence that would constitute a
continuing threat to society?
The jury answered these
questions in the affirmative; accordingly, the judge sentenced
Madden to death.
Madden's conviction was
appealed automatically to the Texas Court of Criminal Appeals,
which affirmed both the verdict and the sentence.
Following this affirmance and denial of certiorari by the U.S.
Madden sought a writ of habeas corpus in state court, which
transmitted the case to the Texas Court of Criminal Appeals
without findings of fact or conclusions of law. That court
denied relief, and Madden pursued his habeas petition in federal
court likewise denied all habeas relief, although it granted
Madden's request for a certificate of probable cause. The court
reasoned that, "[a]lthough Mr. Madden presents evidence that is
more analogous to Penry than other cases before the Fifth
Circuit, there is not substantial evidence that the criminal
conduct was attributable to the learning disorder, mental
illness, or substance abuse."
A. Standard of Review
"In considering a federal
habeas corpus petition presented by a petitioner in state
custody, federal courts must accord a presumption of correctness
to any state court factual findings.... We review the district
court's findings of fact for clear error, but decide any issues
of law de novo."
Evaluation of a petitioner's constitutional challenge to the
Texas special issues as applied to him is, of course, an issue
B. Penry Claim
Madden first challenges the
constitutionality of the special issues as applied to him,
insisting that these questions failed to give effect to his
mitigating evidence of mental illness, dyslexia, and substance
abuse. In support of his argument, he relies on the Supreme
Court's decision in Penry v. Lynaugh,
in which the Court held that the special issues did not give
effect to the petitioner's evidence of mental retardation and
abused childhood to the extent these facts mitigated his
culpability for the crime. We review Madden's claim under Penry
and the subsequent cases that have clarified its holding.
In Penry, the
Court reiterated that the Eighth Amendment requires an "individualized
sentencing determination" by the sentencer;
one that ensures that "the sentence imposed at the penalty stage
... reflect[s] a reasoned moral response to the defendant's
background, character, and crime."
Thus, the constitutionality of the Texas scheme, which considers
mitigating evidence solely through the special issues, "turns on
whether the enumerated questions allow consideration of
particularized mitigating factors."
Ultimately, the Court in Penry
concluded that the special issues failed to give full effect to
Penry's mitigating evidence of mental retardation and abused
childhood. Specifically, although Penry's mitigating evidence
reduced his culpability for the crime, the jury could not
express its reasoned moral response through the special issues
as submitted. Penry's mitigating evidence was relevant on the
first issue--deliberateness--but had only a marginal mitigating
In addition, the Court
emphasized that Penry's evidence on the second issue was a "double
edged sword": it mitigated his responsibility because he was
generally less able to control his behavior than an average
person; at the same time, because he could never learn from his
mistakes, he posed a future danger to the community. Moreover,
as we explained subsequent to Penry, this evidence rendered
Penry less culpable "because these characteristics were due to
uniquely severe permanent handicaps with which the defendant was
burdened through no fault of his own."
1. Personality Disorder
At the punishment phase of the
trial, clinical psychologist Dr. Jim Whitley, who had examined
Madden twice, testified that Madden suffers from a personality
avoidance disorder, which Dr. Whitley characterized as a "clinical
mental illness" that impairs Madden's ability "to think and
react in a logical manner." Madden's particular personality
disorder impairs his ability to interact with others and form
relationships, causing him to run from conflict. Thus, the
testimony established that a person with a personality avoidance
disorder was generally not violent. The disorder does not,
however, prevent Madden from understanding the wrongfulness of
Dr. Whitley, the disorder also makes Madden more susceptible to
substance abuse. In Madden's case, Dr. Whitley concluded that
the combined effects of the personality disorder and the long
term drug abuse had caused Madden to suffer diminished capacity.
Diminished capacity, in psychological terms, refers to a
deterioration or distortion of one's ability to make logical and
The first inquiry in a Penry
claim is whether the mitigating evidence is relevant. Phrased
differently, does the evidence implicate the basic concern of
Penry "that defendants who commit criminal acts that are
attributable to a disadvantaged background, or to emotional and
mental problems, may be less culpable than defendants who have
no such excuse."
In Penry, the defendant's mental retardation rendered him "less
able than a normal adult to control his impulses or to evaluate
the consequences of his conduct."
Thus, there was a clear nexus
between Penry's handicap and his criminal act; the criminal act
was attributable to his severe permanent handicap. The testimony
of Dr. Whitley established that Madden has an emotional disorder
specifically, an anti-social personality. The relevance of this
disorder to Madden's crime, however, is less than clear.
Certainly, the evidence
establishes generally that persons with such personality
disorders are more likely to use drugs, and that drug users are
more likely than non-users to engage in violent behavior. There
is no evidence, however, that Madden was intoxicated at the time
of the murders. To the contrary, there is evidence that he had
finally gained some control over his addiction. Thus, it cannot
be said that Madden's tendency towards substance abuse is
directly responsible for the instant crime, i.e., that the crime
is attributable to such abuse in the Graham sense.
absent from the testimony of Dr. Whitley is any general
statement that a person with a personality avoidance disorder is
more aggressive or violent than an unafflicted person, or any
specific statement that Madden is. To the contrary, Dr. Whitley
testified that victims of such a disorder are less aggressive--except
when they are intoxicated. Also noticeably absent in this
testimony was evidence that Madden was incapable of controlling
his impulses or unable to distinguish right from wrong. Rather,
Dr. Whitley specifically stated that a personality disorder does
not impair one's ability to understand the wrongfulness of his
Based on this evidence, we
conclude that there is insubstantial evidence that Madden's
criminal actions are attributable to his anti-social personality.
Thus, the state court did not err by refusing to give additional
2. Learning Disability
Madden's learning disability
does not fall within the ambit of Penry. In Graham, we
emphasized that Penry's evidence "was strongly mitigating
because these characteristics were due to the uniquely severe
permanent handicaps with which the defendant was burdened
through no fault of his own, mental retardation, organic brain
damage, and an abused childhood."
By imposing the requirement
that a handicap be "uniquely severe," we acknowledged that not
all organic brain damage will establish a Penry claim; rather,
organic brain damage is an example of the type of evidence that
we require as a minimum for a challenge under Penry. Although
dyslexia may be defined as an organic brain impairment, it is
not so "uniquely severe" that it rises to the level of a Penry
3. Troubled Childhood
Madden presented evidence of a
troubled childhood, including abuse while an infant. His father
left his mother when Madden was two and subsequently remarried.
Madden's step-father adopted him when the boy was five years old,
and there is no allegation that the adoptive father abused
Madden. There is, in fact, evidence that Madden's adoptive
father was a very concerned parent.
In Barnard v. Collins, we
recognized that an abused childhood could rise to the level of a
Penry claim if the traumatic events caused psychological effects
to which the criminal conduct was attributable.
Although Dr. Whitley's testimony linked Madden's personality
disorder to his childhood, we have concluded above that his
personality disorder is not linked causally to the criminal act.
As there is no other evidence regarding the effect of this
short-lived abuse on Madden, he fails to produce substantial
evidence that his childhood abuse (if "abuse" it truly was) had
such a psychological effect on him that it led to the criminal
We conclude, then, that
Madden's reliance on his personality disorder, his learning
disability, and his troubled childhood as mitigation in support
of his Penry claim, is misplaced. To grant relief on a Penry
claim, we must determine (1) that the proffered evidence was
constitutionally relevant mitigating evidence, and, if so, (2)
that the proffered evidence was beyond the "effective reach" of
Thus rejection of a Penry
claim does not necessarily mean in every case that the jury was
able to evaluate the proffered evidence fully and fairly. A
Penry claim rejection may also be based on the failure of the
evidence relied upon by the petitioner to be constitutionally
relevant mitigating evidence. As we find such failure here, we
need not and therefore do not consider the ability of the jury
to consider under the Texas special issues the evidence pointed
to by Madden.
4. Prosecutor's Statements
Madden also insists that the
jury could not consider the mitigating evidence because (1) the
court failed to define the word "deliberately" in the first
special issue and (2) the prosecutor suggested that the jurors
were not to consider the evidence and that they were not there
to determine whether Madden lived or died. As we have held that
Madden's evidence was irrelevant, these arguments are moot.
In any event, we have held
consistently that the word deliberately is clear to the average
juror and needs no additional definition. Concerns as to any
possible ambiguity arise only when the special issues have not
given full effect to the mitigating evidence. Moreover, as
Madden failed to raise the second argument before the district
court, he cannot raise it for the first time on appeal.
C. Madden's Failure to Testify
Madden also challenges the
propriety of the prosecutor's statements regarding his failure
to testify. The statement at issue, made during the guilt-innocence
phase, is as follows:
Then, also, the defense will
argue that why in the world would someone who killed, murdered
two people and stole this credit card sign their own name to the
Texaco card? I don't know that; you don't know why. There's only
one person here that knows why, and there's only one person here
that knows the answer to all of these questions.
The Texas Court of Criminal
Appeals held that this passage represented an impermissible
reference to Madden's failure to testify, but concluded that the
reference was harmless beyond a reasonable doubt.
The district court, relying on Milton v. Procunier,
held that the statement, taken in context, was not a comment on
defendant's failure to testify. Alternatively, the district
court concluded that, if there was error, it was harmless.
a claim that the prosecutor impermissibly commented on the
defendant's failure to testify, we ask "whether or not the [prosecutor's]
statement was manifestly intended or was of such character that
a jury would naturally and necessarily take it to be a comment
on the failure of the accused to testify."
We cannot agree with the
district court that the prosecutor's statement was not a comment
on Madden's failure to testify. A review of Milton convinces us
that it is not dispositive, as the prosecutor there was clearly
referring to the existence of an eyewitness. In contrast, the
prosecutor's statement in the instant case could apply only to
Madden, and it undeniably directs the jury's attention to
Madden's silence. Consequently, we agree with the Texas Court of
Criminal Appeals that the statement was an impermissible comment
on Madden's failure to testify.
We also agree with the state
and district courts that such error is harmless under Chapman v.
as it would be under Brecht v. Abrahamson
and Kotteakos v. United States.
The statement was made in connection with Madden's signature of
his own name on Megason's Texaco card--a mistake which led to
Admittedly, the card also
suggested Madden's guilt as it tended to place him at the scene
of the crime and implicate him in the robbery of the victim.
There was, however, other evidence of a similar nature (Madden's
possession of Megason's tool box and watch; his admission that
he stole Megason's truck) and evidence of a far more damaging
nature (possession of all three murder weapons).
In addition, the prosecutor's
statement was made in anticipation of the defense's argument
that a guilty man would not sign his own name, thereby leading
police to him. The defense did indeed make this argument, asking
rhetorically in closing why the defendant would use his own name.
Accordingly, we hold that the error was harmless beyond a
reasonable doubt and does not require reversal.
D. Jury Instructions
insists that the court's failure to instruct the jury as to the
parole consequences of a life sentence, after the possibility of
parole was raised by the prosecutor in closing arguments, biased
the jury in favor of a death sentence. Specifically, Madden
refers to the prosecutor's statement that:
[The second special issue]
talks of acts of violence, not murder. They can be assaults;
they can be anything, but he is a ticking timebomb. And if we
don't take him off the streets permanently by answering these
questions yes, who will be next in that path? ... And what we
must do here is protect ourselves and our families from people
like Robert Madden.
In addition, Madden insists
that the court compounded this error by instructing the jury
that it was not to consider or discuss the possibility of parole
or the length of time required to satisfy a sentence of life
Madden concedes that an
instruction on parole is not constitutionally mandated in
He insists, however, that such an instruction is necessary in
the instant case because of the "facts which created a special
hazard in relation to the question of parole." We cannot agree,
however, that the statements of the prosecutor or the court
created a special hazard. The only potential reference to parole
is the plea to take Madden "off the streets permanently."
We decline to interpret this
statement relating to Madden's future dangerousness as a veiled
reference to release on parole. Doing so would require a
strained manipulation of one euphemistic phrase that never even
mentions the word parole or any synonym for it. Neither will we
interpret the trial court's instruction not to consider the
possibility of parole as an improper reference.
challenges the failure to give a parole instruction on equal
protection grounds. He insists that the failure to give such an
instruction in a capital case, compared to the requirement of a
parole instruction for non-capital cases, violates the Equal
Protection Clause. He admits that normally there is a rational
basis for the distinction, but contends that this basis was
destroyed by the prosecutor's statements and the court's
instructions. As we have rejected Madden's argument that the
prosecutor and the trial court impermissibly implicated
consideration of parole, his equal protection argument is moot.
Despite a valiant attempt by
Madden's counsel to elevate evidence of the defendant's
personality disorder, cum dyslexia, cum drug addiction to the
level of a Penry violation, we conclude that there is no
constitutionally relevant mitigating evidence that Madden's
criminal actions are attributable to these problems. Accordingly,
there was no need for additional instructions. Having concluded
that the evidence was not relevant to Madden's moral culpability,
his related arguments that the jury could not consider this
evidence must fail. Likewise, Madden's challenge to the
prosecutor's impermissible reference to the defendant's failure
to testify fails, as we conclude that the error was harmless in
light of the other evidence. Finally, we reject Madden's claim
that the prosecutor and trial court impermissibly interjected
the issue of parole into the sentencing phase. We decline the
tortuous interpretation necessary to reach that conclusion.
For the foregoing reasons, the
district court's denial of the petition for writ of habeas